The court established that in title disputes involving Waqf property, the burden of proof lies on the occupant to substantiate their claim of possession; failure to provide documentary evidence, coupled with clear official testimony regarding the property's nature, overrides unsubstantiated assertions of poramboke land occupation.

ORDER :

K. Kumaresh Babu, J.

The present Civil Revision Petition has been filed against the Order and decreetal order in O.S.No.53 of 2004 on the file of the Wakf Tribunal cum Sub-Court, Udagamandalam dated 09.01.2008.

2. Heard Ms.V.Srimathi, learned counsel for the petitioner and Mr.Venkatesan, learned counsel, representing M/s.Emily Venkatesan, learned counsel for respondents 1, 4, 7, 11 to 24 and Mr.Mohammed Fayaz Ali, learned counsel for respondents 9 and 10.

3. The learned counsel appearing for the petitioner would submit that the private respondents herein have all encroached upon the properties belonging to the petitioner Waqf. Notices to the encroachers were issued, invoking the powers under Section 64 of the Waqf Act by the Waqf Board, and after hearing the respective parties, an order of eviction came to be passed.

4. Thereafter, the private respondents had instituted a suit for declaration of title and injunction, claiming that the property is a Government poramboke land, in which they have been in uninterrupted occupation and enjoyment. They had also pleaded that the Waqf does not own the property.

5. The learned counsel for the petitioner would submit that in spite of substantiation of the title of the Waqf property by various documents and also the evidence of the Tahsildar, the Court below, on presumptions and assumptions, had come to the conclusion that the suit schedule property is a poramboke land, over which, the Waqf do not have any title and have decreed the suit as prayed for. She would vehemently contend that no documents of title had been filed by the private respondents except ‘B’ memo. She would submit that only after initiation of action against the private respondents to evict them from the suit schedule property, the private respondents had instituted the present suit and have produced documents such as ‘B’ memo and house tax receipts, which are all obtained only after the initiation of proceedings against them. She would further submit that they had not produced any documents prior to the initiation of proceedings by the Waqf Board.

6. Relying heavily upon the evidence of D.W.2, who was the Tahsildar of the locality, she would submit that the land belongs to the Waqf Board and that the ‘B’ memos that were issued do not relate to the Waqf property but relate to an encroachment on the road margin and not the Waqf property. She would submit that the same had been clearly spoken to by D.W.2/Tahsildar, and overlooking the same, the learned trial Court, framing various issues, had held that the private respondents are only in encroachment of Government poramboke lands and not in occupation of lands belonging to the Waqf Board, and to grant decree in their favour. Hence, she seeks indulgence of this Court.

7. Countering her arguments, the learned counsel appearing on behalf of the private respondents would submit that the entire lands to which the petitioner claims title and ownership are not in occupation of the private respondents, and that they are only in occupation of Government poramboke lands for which ‘B’ memos have been issued, upon which they had put up superstructures where they are residing, and house tax receipts are also being issued.

8. He would submit that the petitioner had failed to produce any substantive documents to claim that the suit schedule property is Waqf property. On the other hand, analysing the evidence of D.W.2, it could be seen that the respondents are in possession of Government poramboke lands for which ‘B’ memos have been issued and charges have been paid by the private respondents. He would further submit that the properties are all assessed to the Coonoo